“THEORIES the masses. Black’s law defines punishment as

 

 

 

 

 

 

 

“THEORIES OF PUNISHMENT”

 

 

 

 

 

 

 

 

 

 

 

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ASIF
ZAMIR

Roll
No: 53280

2nd Year, LL.M (3 Year Course)

Subject: Criminology & Criminal
Justice Administration

Under the Guidance of Ms Shweta Gagneja

Faculty of Law, University of Delhi

 

 

 

CONTENTS

 

1.    INTRODUCTION

 

2.    THEORIES
OF PUNISHMENT

 

·       Deterrence
Theory

·       Retribution
Theory

·       Preventive
Theory

·       Reformative
Theory

 

3.    CONCLUSION

 

 

 

 

 

 

 

 

 

INTRODUCTIoN

 

Crimen omnia ex se nata vitiat
– Crime vitiates everything, which springs from it.

 

Crescente malitia crescere debet et
poena – Punishment is ought to be increased as malice/vice
increases.

 

An
offence may become a crime as a result of combined effect of myriad social forces
& therefore what exactly & exclusively are the forces which have
resulted in endangering the safety, stability or comfort among individuals in
the society is difficult to fathom. A crime may, therefore be an act of disobedience
to such a law forbidding it, but then disobedience of all laws is not crime. This
means that a wrong would mean something more than mere defiance to a law; it
means an act which is both prohibited by law & revolting to the moral attitude
of the society. A crime of yesterday may become a virtue of tomorrow & so
also a virtue of yesterday may become a crime tomorrow. This causes a
‘difficulty’ in the ultimate analysis of the definition of crime as it keeps
changing with the will of the masses.

 

Black’s
law defines punishment as “Any pain, penalty, suffering, or confinement inflicted
upon a person by the authority of the law & the judgment & sentence of
a court, for some crime or offense committed by him, or for his omission of a
duty enjoined by law.”

 

The
stage of punishment is the final process of the criminal jurisprudence system. once
a person is accused for some crime the first & foremost tenet of criminal
law comes into play i.e. ‘a person is considered innocent until proved guilty’.
Then the law takes it course & the evidence requires a st of proof
to be beyond reasonable doubt whilst establishing the guilt of the accused via
trial. once the court connects the dots & comes to a conclusion based on
the relevancy & admissibility of the proofs available, it decides the
quantum of punishment in proportion to the gravity of the offence so committed.

However,
the fact that the punishment ought to increase with respect to the vice, in modern
phenomenon means that such punishment must make the person committing it
realise that it has caused irreparable harm to someone & he must also want
to compensate for his offence by being a better human being & this feeling
must be quintessential while increasing the punishment. Therefore, the thrust of
punishment ought to be reformative & rehabilitative. Thus as per Professor
Wechsler the purpose of criminal law is to express a formal social condemnation
of forbidden conduct, buttressed by sanctions calculated to prevent it.

 

 

THEORIES OF
PUNISHMENT

 

In
the midst of transformation in the societal organization of the populace, it
has been witnessed that diverse theories of punishment had a far-reaching impact
on the society & that during the course of development they have undergone
tremendous changes since the early inception period till the post modern contemporary
period & the critical issuess relating to them.

 

Punishment
however has four major philosophical theories namely:

(i)   
Deterrence Theory

(ii) 
Retribution Theory

(iii)                   
Preventive Theory

(iv)Reformative
Theory

 This term paper aims at illustration of the progress
& expansion of the theories of punishment. The foremost purpose of this
paper is to examine the multiple punishment theories & shed light on the
merits & demerits of every theory.

 

 

 

(I) DETERRENCE PUNISHMENT THEoRY

 

one of the
primitive techniques of punishment believed that if a strict punishment was
inflicted on the offender, it would not only deter him from repeating that
crime but also set an example for others to follow. It is assumed that those who
commit a crime derive a certain psychological satisfaction or a sense of enjoyment
from that act of crime, rigorous punishment is inflicted to neutralize this proclivity
of the criminal mind. Humans very much like to seize opportunities for
fulfilling their intentions, but despise when they face threats for the same.

J.
Bentham, as the main originator of this theory, states:

“General
prevention ought to be the chief end of punishment, as it is its real
justification. If we could consider an offence which has been committed as an
isolated fact, the like of which would never recur, punishment would be
useless. It would be only adding one evil to another. But when we consider that
an unpunished crime leaves the path of crime open not only to the same
delinquent, but also to all those who may have the same motives & opportunities
for entering upon it, we perceive that the punishment inflicted on the
individual becomes a source of security to all. That punishment, which, considered
in itself, appeared base & repugnant to all generous sentiments, is
elevated to the first rank of benefits, when it is regarded not as an act of
wrath or of vengeance against a guilty or unfortunate individual who has given
way to mischievous inclinations, but as an indispensable sacrifice to the common
safety.”1

`           The term “Deter” means to abstain &
avert others from doing an act. The main objective this theory is to deter
(prevent) the criminal repeating the same crime in future or other prospective
criminals from committing the crime in future. Punishment serves as an admonition
to the offender not to reiterate & moreover acts as a message to other
nefarious elements in the society as to the effect that what can be the consequences
of committing a crime. It leads to deterrence if punishment is administered with
uniformity, certainty, celerity & rigorousness.
But being aware that punishment is a wicked method, Bentham states, “If the
evil of punishment exceeds the evil of the offence, the punishment will be unprofitable;
he will have purchased exemption from one evil at the expense of another.”2

“In
earlier days a criminal act was considered to be due to the influence of some
evil spirit on the offender for which he was unwillingly was made to do that wrong.
Thus to correct that offender the society retorted to severe deterrent policies
& forms of the government as this wrongful act was take as an challenge to
the God & the religion. The basic idea of deterrence is to deter both offenders
& others from committing a similar offence. But also in Bentham’s theory was
the idea that punishment would also provide an opportunity for reform.”

The
framers of this Deterrent Theory believe that punishment primarily acts as
deterrence & its purpose is to demonstrate its detrimental effects. The offences
are primarily committed as a consequence of clash between the legitimate
interests of society at large & unlawful interests of the wrong-doer. This
theory of deterrent punishment demonstrates that the offender receives the
least benefit from committing the crime. In this regard, John Locke observed “By
making crime an ill-bargain to the offender, it sends a message to world at
large that punishment of crime is way more costly than the pleasure in
achieving an end.”3

The
scheme underneath deterrent punishment is to avert commission of crime by means
of imposition of severe correctional sentence on the criminal. The State machinery
by imposition of heavy sentences deters its citizens from carry out criminal
acts through fear-psychosis. The rigorous penal provisions are made to petrify &
warn to the actual offender & other prospective ones.

Despite all these efforts this theory
still suffers from certain lacunae. The theory of deterrence becomes toothless while
dealing with hard-boiled criminals due to their increased resistance to the
pain; the brutal punishment or even the heavy penalties provided turn out to be
unproductive. The derision of this theory can be best observed when habitual
criminals seek or commit a new crime to return back to the prison as they take
pleasure in their captivity more than their freedom.

1 Jeremy Bentham: The Rationale of Punishment. Book I General
Principles, Chapter III – “of the Ends of Punishment”

2 Ibid

3
John Locke: Second Treatise of Civil Government:
CHAP. II “of the State of Nature” ref. Sec. 12.